EDITORIAL: Review of top justiceshttp://www.asahi.com/english/Herald-asahi/TKY200908270050.html
2009/8/27

Nine of the 15 Supreme Court justices are up for a people’s review when voters head to the polls for Sunday’s Lower House election. The occasion provides voters with their only opportunity to directly express their approval or disapproval of the current state of the judiciary.

Amid expectations for a regime change, debate is heating up over the government system. However, we should also think about the top court’s personnel system.

The Constitution stipulates that Supreme Court justices are to be « reviewed » by the public, but no one has been dismissed under this system so far. Justices are subject to a review at the time of the first Lower House election after their appointment. Their next review will be during the first Lower House election « after a lapse of 10 years. »

However, since many justices are older than 60 at the time of their appointment and their mandatory retirement age is 70, there is effectively no second review for anyone. Consequently, justices who come under the review are fairly new to the job.

Of the nine justices up for review this time, five, including Chief Justice Hironobu Takesaki, have never made a decision related to the Constitution, nor have they participated in a Grand Bench ruling that can reverse established precedents.

In short, these justices have too meager a track record, if any, on which the people can form their opinions.

But perhaps the more fundamental problem than the people’s review system, which serves no practical purpose, is that Supreme Court justices are appointed behind closed doors.

The chief justice is named by the Cabinet and appointed by the emperor. The remaining 14 justices are appointed by the Cabinet. In reality, however, the sitting chief justice picks his successor and recommends his choice to the prime minister, and the Cabinet respects the choice.

As for the other justices, the custom is that the Supreme Court picks candidates when a justice who is about to retire is a former judge, while the Cabinet puts together its shortlist of candidates when the retiring justice is a former bureaucrat. That is an accepted practice.

The public is kept completely in the dark about the screening process, and the Cabinet merely announces the result.

Including Takesaki, we have so far had nine consecutive chief justices who were former judges. The backgrounds of other members of the bench are rigidly predetermined, too, with fixed quotas in place for former judges, prosecutors, lawyers, bureaucrats and legal scholars. All these individuals are invariably preceded and succeeded by their peers in their respective professions.

The public is not informed of the professional histories of Supreme Court justices, nor why they were chosen. This is the fundamental factor that renders the people’s review system a mere formality.

Bringing transparency to the selection process is of critical importance if the will of the people is to be reflected in the Supreme Court, which is supposed to protect the Constitution and keep the Diet and the administration in check.

The Justice System Reform Council recommended in its 2001 report that studies be conducted to bring transparency and objectivity to the process of appointing Supreme Court justices.

A reform plan was once presented to the Diet, proposing an advisory panel of jurists, members of both houses of the Diet and academics, who would recommend several candidates for the Cabinet to consider.

Our elected representatives should be deeply committed to tangible reform. But political parties are apparently not particularly interested, which is most regrettable.

The citizen judge system was introduced in May to make the judiciary more open to the people. If the judiciary is to be supported by the public, full disclosure of the process of nominating and appointing the chief and other justices at the top court is now needed. That would give the people enough information on which to form their opinions of justices up for review.